Citation Nr: 1512501
Decision Date: 03/24/15 Archive Date: 04/01/15
DOCKET NO. 08-23 222 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
S. Finn, Counsel
INTRODUCTION
The Veteran served on active duty from January 1961 to November 1963.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied entitlement to a rating in excess of 20 percent for the Veteran's left shoulder disorder. In September 2009, the Veteran testified from the RO via video-conference before the undersigned Veterans Law Judge.
In July 2011, the Board granted entitlement to a rating of 30 percent, and no higher, for residuals of a left shoulder injury (minor), for the period from August 31, 2006, to March 4, 2007, but denied a rating in excess of 20 percent for residuals of left shoulder injury (minor), for the period beginning March 5, 2007. The Board also found that the record raised a claim for a TDIU as an included claim within the Veteran's claim for an increased rating for his left shoulder disability. See Rice v. Shinseki, 22 Vet.App 447 (2009). The claim for a TDIU was remanded to the RO for additional development.
FINDING OF FACT
The Veteran's service-connected disabilities render him unemployable.
CONCLUSION OF LAW
For the entire appellate period, the criteria for the establishment of a TDIU are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b) (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
A TDIU may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.
Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 § C.F.R. § 4.16(a).
Furthermore, a total disability rating may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b).
In this case, for the entire appellate period, the Veteran's service-connected disabilities have been rated as follows: PTSD, 50 percent since August 31, 2006; hearing loss, 50 percent since August 31, 2006; residuals of left shoulder injury, 30 percent from August 31, 2006, to March 31, 2007, 20 percent from April 1, 2007, to May 28, 2009, and 30 percent from May 29, 2013, forward; tinnitus, 10 percent since August 31, 2006; and residuals of a puncture wound to the right foot, noncompensable since August 31, 2006. The combined disability evaluation was 90 percent from August 31, 2006, to March 31, 2007; 80 percent from April 1, 2007, to May 28, 2009; and 90 percent from May 29, 2013 forward. See 38 C.F.R. § 4.16(a). This evaluation meets the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a), and the question thus becomes whether these disabilities, in and of themselves, preclude the Veteran from securing or following a substantially gainful occupation.
In this regard, the Board has considered the Veteran's educational and employment background. The February 2014 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) indicates that he attended high school through the 11th grade and got a high school equivalent diploma. The Veteran also stated on the form that he has had no other education or training. He reported that he had last worked full-time in 1984 as a construction superintendent. The record shows that Veteran has had numerous jobs after leaving the Navy that involved construction or setting up cable TV facilities.
As to whether the Veteran's service-connected disabilities preclude substantially gainful employment, the Board finds the VA examination reports to be helpful. With respect to the Veteran's PTSD, the October 2011 VA examiner opined that the Veteran's "PTSD symptoms such as intrusive memories diminished sleep and concentration would still make it difficult for him to maintain performance in a work setting." The examiner also stated that "his psychological symptoms would cause his work performance and interpersonal relations to deteriorate over time." In October 2013, the VA psychiatric examiner stated that it was difficult to conceive of a workplace that would conform to his needs and that his daily function would likely deteriorate in a workplace setting because of frustrations and limited tolerance for the same.
With respect to the Veteran's left shoulder disorder, the November 2011 VA examiner opined that the severity of the left shoulder condition (with severely reduced range of motion, frequent dislocations, and the need for chronic narcotic analgesic usage with its attendant cognitive and functional impairment) precludes any significant gainful physical or sedentary employment. In October 2013, the VA examiner stated that the Veteran had marked limitation of motion of his left shoulder and that any occupation that required use of the left shoulder would not be possible.
With respect to the Veteran's hearing loss and tinnitus, the October 2011 VA examiner stated that these disabilities would not be a barrier to a wide range of employment settings, but that it not to say that they would not cause some problems depending on the vocation. The examiner further explained that the Veteran may have trouble working in very noisy environments.
Having carefully considered the Veteran's contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, the Board finds that the criteria for entitlement to a TDIU have been met for the entire appellate period. See 38 C.F.R. § 4.16.
ORDER
Entitlement to TDIU is granted, subject to the applicable regulatory provisions governing payment of monetary awards.
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P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs